Appeal and Error-Scope of Review-Preservation of Exceptions. 6. Where no bill of exceptions sets up errors in certain rulings and there is no appeal from such rulings, the specifications of error cannot be considered.

From Multnomah: GEORGE N. DAVIS, Judge.

This is an action by J. D. Morris against John P. Leach for rent. There was a judgment in favor of plaintiff and defendant appeals.

Submitted on brief without argument under the proviso of Supreme Court Rule 18: 56 Or. 622 (117 Pac. xi). AFFIRMED.

For appellant there was a brief over the name of Mr. G. E. Hamaker.

For respondent there was a brief over the name of Mr. Frederic H. Whitfield.

In Banc. MR. JUSTICE MCCAMANT delivered the opinion of the court.

This is an action to recover an installment of rent which became due from appellant January 15, 1915. The original owner of the debt was one Ernest Wells. Respondent claims that the debt was assigned to him by Wells on the 2d of January, and that the assignment, in the form of an order from Wells, was presented to appellant and accepted by him on the 4th of January. Appellant denies that the debt was assigned to respondent, and defends on the ground that he was served on the 8th of January with a writ of attachment and garnishment in an action brought by O. H. Stubrud against Wells and another.

1, 2. The lower court found that the rent in question was assigned to respondent, and that notice thereof was brought home to appellant prior to the service of the writ of garnishment. The case was

tried by the court without the intervention of a jury, and the findings have the force and effect of a verdict. If there is any competent evidence in the record to sustain the above finding, the judgment must be affirmed: Haviland v. Johnson, 70 Or. 83, 84 (139 Pac. 720); Smith v. Badura, 70 Or. 58, 61, 62 (139 Pac. 107); Gilbert v. Sharkey, 80 Or. 323, 327 (156 Pac. 789, 157 Pac. 146).

3. The bill of exceptions shows that Wells gave respondent the following order:

"Portland, Oregon, January 2, 1915. "John P. Leach, City. Kindly pay J. D. Morris the rent due January 15, 1915, amounting to $15.00, and oblige.

"ERNEST WELLS."

Prior to the giving of the order respondent had telephoned appellant about the matter, and appellant had stated that he would just as soon pay the money to respondent if respondent produced an order from Wells. The order was lodged with appellant on the 4th of January, and remained in his hands until the case was tried.

We think that the above was competent evidence to sustain the findings of the lower court. The order accurately described a specific fund. The authorities hold that such an order is sufficient to assign the fund described: 4 Cyc. 38; 5 Corpus Juris, 922; Tyrell v. Murphy, 30 Ont. L. 235, 237, 238; Gray v. Trafton, 12 Mart. O. S. (La.) 702; Switzer v. Noff singer, 82 Va. 518; Adams v. Robinson, 1 Pick. (Mass.) 461; Robbins v. Bacon, 3 Me. 346; Conway v. Cutting, 51 N. H. 407.

4. After notice of such an assignment is brought home to the debtor, the debt is not subject to garnishment by creditors of the assignor: Robbins v. Bacon,

3 Me. 346; Conway v. Cutting, 51 N. H. 407; Drake, Attachment (7 ed.), § 610.

5. The court did not err in excluding the writ of attachment and garnishment served on appellant subsequent to the date when he was advised of the assignment of the debt to respondent. We have examined the other rulings of the lower court in the matter of evidence received and excluded, and find no error.

6. Appellant also assigns as error certain rulings of the lower court in settling the costs and disbursements of respondent. No bill of exceptions has been attached to the record setting up these alleged errors, nor has an appeal been taken from the rulings of the court thereon. For the reasons set forth in Perkins v. Perkins, 72 Or. 302, 310 (143 Pac. 995), we cannot notice these specifications of error.

The judgment is therefore affirmed.

AFFIRMED.

Argued January 9, reversed January 16, 1917.

PAABO v. HANSON.

(162 Pac. 256.)

Judgment-Setting Aside-Call of Causes-Notice.

1. Since Section 2804, L. O. L., as amended in 1911 (Laws 1911, p. 440), provides that there shall be two terms of the Circuit Court in Lincoln County, one beginning on the first Monday in August, counsel employed in a case in such county is chargeable with notice of such legislation, and the fact that the Circuit Court in his own county was not in session did not justify his assuming that a case on the docket in Lincoln County would not be heard at the August term.

Judgment-Setting Aside Grounds.

2. Where the judgment appealed from was obtained ex parte after notice that the other party could not appear for sufficient reasons, it will be reversed on terms, under Section 103, L. O. L., providing that the court may, in its discretion, relieve a party from a judgment by surprise or excusable neglect.

From Lincoln: JAMES W. HAMILTON, Judge.

Department 1. Statement by MR. JUSTICE MCCAMANT.

This is an action brought in the Circuit Court for Lincoln County by Madis Paabo against Anto H. Hanson to recover damages for an alleged malicious prosecution.

The record shows that on the twenty-eighth day of August, 1914, the defendant swore to a complaint in the Justice Court for Rose Lodge Precinct, Lincoln County, charging plaintiff with the offense of malicious mischief. The prosecution having terminated in an acquittal, plaintiff brought this action on the fourth day of November, 1914, charging that the prosecution was malicious and without probable cause, and claiming damages in the sum of $1,600. The summons was served on the seventh day of January, 1915.

The defendant retained Mr. Allan R. Joy, of Portland, to represent him, and through Mr. Joy demurred to the complaint. This demurrer was overruled, and on the third day of February, 1915, an answer was filed.

On the thirty-first day of July, 1915, plaintiff filed his reply, a copy being sent to Mr. Joy by mail. In the meantime the clerk of the Circuit Court for Lincoln County had telegraphed Mr. Joy on the thirtieth day of July that the case had been set for trial for August 2d. At this time Mr. Joy was away from Portland on his vacation, and his office was in charge of Miss Nellie M. Todd, his stenographer. She replied to the message by letter, advising the clerk that Mr. Joy was out of the city, and distant 14 miles from the nearest postoffice. She stated that the defendant

82 Or.-88

was not aware that the case was to be tried at that time, and asked the clerk to explain the matter to the court and have the case put over until the return of Mr. Joy. Miss Todd also endeavored to communicate with the defendant. Notwithstanding the request so transmitted, the case was called for trial on the third day of August. In the absence of defendant and his counsel a jury was impaneled, the cause was tried, and a verdict returned for plaintiff in the sum of $250. Judgment was entered on this verdict. On the thirteenth day of September, 1915, the defendant filed a motion supported by affidavits, asking for the vacation of the judgment and offering to submit to any terms which the court might impose. The supporting affidavits set up the correspondence above referred to and some additional telegraphic correspondence, which passed between Mr. Joy and the clerk on the former's return to Portland. The affidavits further alleged that the courts of Multnomah County were not sitting at the time, and that it was therefore regarded as a vacation period by the bar of that county; that Mr. Joy had not expected to try the case before September 1st; that defendant had a meritorious defense; that his witnesses were scattered throughout Lincoln County, and resided from 30 to 40 miles from the county seat; that the defendant required at least a week or ten days' notice of the trial in order to secure their attendance. The affidavit of Mr. Joy closed with this paragraph:

"Affiant further says that since the first day of February, 1915, defendant has been constantly employed by the State of Oregon as night watchman in the Oregon Building at the Pacific Panama International Exposition at San Francisco in the State of California, and is now so employed, and that such